Delhi District Court
Renuka W/O Sh. Devender vs Rani W/O Late Dharamvir Singh on 13 October, 2020
IN THE COURT OF SH. M. P. SINGH, ADDITIONAL DISTRICT
JUDGE03, EAST DISTRICT, KARKARDOOMA COURTS: DELHI
RCA No. 23/2019
Renuka w/o Sh. Devender,
R/o H. No. 50, 1st Floor, Khasra No. 39/4,
Gali No.1, Sarojni Naidu Park
Shashtri Nagar,Delhi 110031 ..........Appellant
Versus
1. Rani w/o Late Dharamvir Singh,
R/o H. No. 50, 1st Floor, Khasra No. 39/4,
Gali No. 1, Sarojni Naidu Park
Shashtri Nagar, Delhi 31
2. Devender s/o Late Sh. Dharamvir Singh,
R/o H. No. 50, 1st Floor, Khasra No. 39/4,
Gali No.1, Sarojni Naidu Park
Shashtri Nagar, Delhi 31 .........Respondents
Appeal filed on - 22.02.2019 Arguments heard through video conference on - 26.09.2020 Judgment pronounced on - 13.10.2020
1. This is an appeal by one of the defendants before Ld. Trial Court impugning the decree dt. 24.12.2018 whereby and whereunder she and the other codefendant, namely Devender (respondent no.2 in this appeal), have been directed to: (a) hand over vacant and peaceful possession of the property i.e. a room in property no. 50, gali no.1, Sarojini Naidu Park, Shastri Nagar, Delhi - 31 within two months, (b) pay user charges / mesne profits at the rate of Rs. 2,500/ per month with effect from 06.06.2016 till RCA No. 23/2019 Renuka v. Rani & Anr. Page 1 of 11 its vacation, and (c) not to sell, alienate, transfer or create third party interest in the aforesaid premises by way of permanent injunction decree. Parties shall be referred to in this judgment as per their ranks before Ld. Trial Court.
2. Facts may now be taken note of. Plaintiff's husband, who passed away on 22.02.2014, was the owner of property no. 50, Gali no.1, Sarojini Naidu Park, Shastri Nagar, Delhi - 31. He bequeathed this property to the plaintiff vide a notarised Will dt. 27.03.2010 (Ex. PW1/5). Defendant no.1 Devender is plaintiff's son. He got married in December 2000, but his spouse left his company in year 2005. Defendant no.2 Renuka, who was already married and had a son, got married to Devender without taking a divorce. Thereafter, plaintiff Rani permitted Renuka and Devender to reside in the aforesaid property as her licensees. Defendants gave undertaking to plaintiff Rani to vacate and hand over possession of the property as and when asked to do so. However, after coming into possession of the property, behavior of Renuka and Devender changed. They allegedly did not care and show respect to plaintiff Rani and her late husband. They started to pressurise the plaintiff to execute sale documents in their favour. Defendant no.2 Renuka, in particular, frequently picked up quarrels with the plaintiff and her other family members. She sued plaintiff Rani and other family members under section 12 of Domestic Violence Act before the court of Ld. Metropolitan Magistrate, Delhi. She allegedly threatened plaintiff to have her jailed. Given the circumstances, plaintiff severed her relations with the defendants and debarred them from all her RCA No. 23/2019 Renuka v. Rani & Anr. Page 2 of 11 properties vide public notice in the daily Virat Vaibhav dt. 31.10.2015 (Ex. PW1/4). Plaintiff's repeated requests to the defendants to vacate the premises fell on latters' deaf ears. Plaintiff vide her legal notice dt. 16.10.2015 (sic. 30.10.2015) Ex. PW1/6 terminated defendants' license, called upon them to vacate within 15 days and asked them to pay damages/ mesne profits/ use and occupation charge of Rs. 4,000/ per month, excluding water and electricity charges. Defendants, however, did not comply with the same. On 30.12.2015 when the plaintiff asked the defendants to vacate, the latter threatened to hand over possession of the premises to third party and create party interest in the aforesaid property. On these averments, plaintiff Rani filed the suit with the following reliefs:
(a) decree of possession in respect of one room on the first floor of the aforesaid property, (b) mandatory injunction decree thereby directing the defendants to hand over possession of one room on the first floor of the aforesaid property to the plaintiff, (c) permanent injunction decree thereby restraining the defendants from selling, alienating, transferring, or creating any charge in respect of one room on the first floor of the aforesaid property aforesaid property, and (d) mesne profits of Rs. 4,000/ per month or at any other prevailing market rate from the date of filing of suit till its actual realisation.
3. Defendant no.1 Devender (respondent no.2) suffered the proceedings ex parte before Ld. Trial Court. He had not filed his written statement. Before this court too, he, despite service, did not appear.
RCA No. 23/2019 Renuka v. Rani & Anr. Page 3 of 114. Defendant no.2 Renuka (appellant) in her written statement took the defence that plaintiff is not the owner of the property; that the Will Ex. PW1/5 on basis whereof she is claiming ownership is not probated; that plaintiff's ownership document cannot be read in evidence in view of section 54 of Transfer of Property Act and section 17 of Registration Act; that market value of the suit property is more than Rs. 6 lacs and the suit is undervalued. Besides this, she states that it is plaintiff Rani who resorts to illbehaviour; that she (appellant) had disclosed her marital status to the plaintiff before marrying Devender; that with the consent of both the parties a declaration was issued on 04.08.2008 as proof of marriage wherein it was clearly stated that it was the second marriage of both of them and that she (appellant) had a child from her previous marriage; that she (appellant) is residing in the property in question since the very next date of her marriage with Devender; that she filed the petition under Domestic Violence Act only when the situation became intolerable for her. Denying other averments, she sought dismissal of the suit.
5. Ld. Trial Court on 28.03.2017 framed the following issues.
1. Whether the plaintiff is entitled to the relief of possession as prayed for? OPP
2. Whether the plaintiff is entitled to use and occupation charges as prayed for in prayer clause (b)? OPP
3. Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for in prayer clause? OPP
4. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for in prayer clause (d)? OPP RCA No. 23/2019 Renuka v. Rani & Anr. Page 4 of 11
5. Whether the plaintiff is entitled to the mesne profits @ of Rs. 4,000/ per month along with interest @ 18% per annum as prayed for in prayer clause (e)? OPP
6. Whether the present suit is barred for want of pecuniary jurisdiction? OPD
7. Relief.
6. In the trial, in plaintiff's evidence, the following witnesses were examined: PW1 Rani, the plaintiff herself.
PW2 Jagdish. He is a witness to the Will dt. 27.03.2010 (Ex. PW1/5) executed in plaintiff's favour by her husband.
PW3 Mahavir. He too is a witness to the Will dt. 27.03.2010 (Ex. PW1/5) executed in plaintiff's favour by her husband.
7. In evidence of the defendants, only one witness, namely Renuka (DW2) - appellant/defendant no.2 - entered the witness box.
8. Ld. Trial Court, in its judgment, decided all the issues in favour of plaintiff Rani (respondent no.1).
9. Arguments heard. Record perused.
10. Plaintiff / respondent no.1 Rani claims ownership on the basis of Will dt. 27.03.2010 (Ex. PW1/5) executed by her late husband, who passed away on 22.02.2014. The Trial Court record shows that her late husband, in turn, had taken the property in question on the basis of GPA sale RCA No. 23/2019 Renuka v. Rani & Anr. Page 5 of 11 documents {Ex. PW1/8 (colly)} GPA, Agreement to Sell, affidavit and receipt dated 16.12.1981. It is appellant's contention that GPA sale documents (Ex. PW1/8) do not confer any right, title or interest. It is further her contention that the Will Ex. PW1/5 is of no help to the plaintiff inasmuch as it is notarised and has not been got probated. Both these contentions of the appellant are of no avail.
11. This court is conscious of the Apex Court verdict in Suraj Lamps & Industries Pvt. Ltd. v. State of Haryana & Anr. 183 (2011) DLT 1 (SC). However, subsequent thereto, Delhi High Court in Shri Ramesh Chand v. Shri Suresh Chand & Anr., 188 (2012) DLT 538 has held that where power of attorney sale documents are coupled with consideration, then stricto sensu complete ownership is not conferred, but the said documents do create rights to the extent provided under section 202 of the Contract Act, 1872, section 53A of Transfer of Property Act and ownership on account of devolution in terms of the Will after demise of the testator. Delhi High Court in this regard relied on an observation in Suraj Lamps (supra) to the effect that power of attorney is not revocable or terminable at any time unless it is made irrevocable in a manner known to law. It may also be pointed out that under section 202 of Contract Act, 1872 if a power of attorney is given for a consideration, then it cannot be terminated in the absence of an express contract to the prejudice of such interest. I may also add that in Suraj Lamps (supra) Apex Court clarified that its order shall not be construed to imply that the said documents are without any legal RCA No. 23/2019 Renuka v. Rani & Anr. Page 6 of 11 effect or cannot be looked into. Rather, the Apex Court held that its observations shall not impinge on the validity of genuine transactions. Further, in Maya Devi v. Lalta Prasad, (2015) 5 SCC 588 it has been held that Suraj Lamps has prospective application and that it does not affect the validity of sale agreements and power of attorney executed in genuine transactions. In the case at hand, the GPA sale documents executed in plaintiff's late husband's favour are of year 1981. These documents were thus executed much before Suraj Lamps. Secondly, there is no evidence on record to even remotely suggest that the GPA sale documents in favour of plaintiff's late husband was not a genuine transaction. Besides this, the pleadings would show that the appellant Renuka did not lay any specific challenge to the ownership of plaintiff's husband over the property in question. Thus, for these reasons the argument touching on the validity of GPA sale documents of year 1981 in plaintiff's late husband's favour are turned down.
12. Now comes the Will dt. 27.03.2010 (Ex. PW1/5) executed by plaintiff's husband in her favour. Under the provisions of Indian Succession Act it is not necessary to seek probate or letters of administration of a Will in respect of properties or persons located in Delhi {Kanta Yadav v. Om Prakash Yadav & Ors., 2019 SCC OnLine SC 920}. Further, under the Registration Act, 1908 a Will does not require mandatory registration. Next, the two witnesses of the Will (Ex. PW1/5) are PW2 Jagdish and PW3 Mahavir. These two witnesses have clearly stated in their evidence that plaintiff's husband had executed the Will (Ex.
RCA No. 23/2019 Renuka v. Rani & Anr. Page 7 of 11PW1/5) in sound disposing mind in their presence; that the testator had affixed thumb impressions and signed on the same in their presence; that they had signed on the Will as witnesses in the presence of the testator at the request of the testator; that the other witness to the Will too had signed on the Will in their presence; that the testator and both the witnesses were present at the same time and the same place on 27.03.2010. Cross examination of these two witnesses does not create any doubt in the manner of execution of the Will (Ex. PW1/5). This Court is of the view that the Will (Ex. PW1/5) was executed in the manner provided by law / section 63 of Indian Succession Act. Next, the Will Ex. PW1/5 clearly states that property in question shall stand bequeathed to the plaintiff. Thus, the contentions touching on validity of the Will (Ex. PW1/5) are turned down.
13. Next, Ld. Trial Court rightly relied on the Delhi High judgment dt. 19.11.2007 of Ramesh Kumar Handoo v. Binay Kumar Basu, (RSA 268/07) to hold that defendants are merely permissive users of the property in question. In S.R. Batra v. Taruna Batra, (2007) 3 SCC 169 it has been held that daughterinlaw is entitled to claim right to residence in the property owned by her husband or of the property of joint family of which the husband is a member. In Ekta Arora v. Ajay Arora & Anr., AIR 2015 Del 180 it has been held that a daughterinlaw can claim no right in a property which belongs to her fatherinlaw or her motherinlaw.
14. Reliance placed on the judgment of Kavita Gambhir v. Hari Chand Gambhir & Anr., (2009) 162 DLT 459 by Ld. Counsel for the RCA No. 23/2019 Renuka v. Rani & Anr. Page 8 of 11 appellant is misplaced. In Kavita Gambhir (supra) it was observed that where the property in question is a joint family property, the same may constitute a matrimonial home for the daughterinlaw. However, in the case at hand there is no defence of the appellant in the pleadings that the property in question is a joint family property.
15. This court is thus of the view that Ld. Trial Court rightly held that plaintiff Rani was entitled to recover possession, by way of mandatory injunction relief, of the portion of the property under the occupation of the defendant(s) from the defendant(s).
16. It was next urged on appellant's behalf that plaintiff, having not sued for the relief of declaration of her ownership, could not have maintained the suit. This argument is without any basis. There was no need for the plaintiff to sue for the relief of declaration. It may have been necessary for the plaintiff to seek declaratory relief only if there was a cloud over her title. In the case at hand, there was no real cloud over her title to the property in question. Defendants have no real basis to claim title to the property in question. Appellant raised contentions, touching on plaintiff's title, which did not have sufficient/ real basis.
17. Now comes the question of grant of mesne profits. In the plaint mesne profits was claimed at the rate of Rs. 4,000/ per month, excluding water and electricity charges. Ld. Trial Court granted mesne profits at the rate of Rs. 2,500/ per month. It was appellant's argument that Ld. Trial Court did not conduct enquiry for determination of mesne profits as RCA No. 23/2019 Renuka v. Rani & Anr. Page 9 of 11 provided under Order XX Rule 12 of CPC. This argument is sans merit. Specific issues with respect to mesne profits/ damages had been framed. Both the parties led their evidence knowing fully well as to on what issues the trial was to be conducted. Therefore, to now contend that Ld. Trial Court did not conduct enquiry for determination of mesne profits as provided under Order XX Rule 12 of CPC would be perfunctory at best. I see no error in the award of mesne profits at the rate of Rs. 2,500/ per month in favour of plaintiff Rani by Ld. Trial Court.
18. Ld. Counsel for the appellant relying on the judgment of Kavita Gambir (supra) argued that where the enquiry is not conducted in terms of Order XX Rule 12 of CPC, the grant of mesne profits cannot be sustained. This judgment does not assist the appellant. In the case at hand, the plaintiff claimed mesne profits only and only from the date of filing of the suit. She did not claim past mesne profits. Ld. Trial Court had very much framed specific issue(s) on this aspect. Both the parties were given adequate opportunities of leading evidence on all the issues, including that of mesne profits. Given this, it is not correct to argue that the enquiry for mesne profits was not conducted.
19. During the course of arguments, both the sides advanced arguments on the question of validity of marriage of the two defendants. This question is not for the civil court to decide and give a verdict. That apart, whether the marriage is valid or not is not really germane to the issues in the case at hand.
RCA No. 23/2019 Renuka v. Rani & Anr. Page 10 of 1120. This Court finds no infirmity in the impugned judgment of Ld. Trial Court. The impugned judgment of Ld. Trial Court is upheld. The decree passed by Ld. Trial Court is affirmed. The appeal is liable to be dismissed. It is ordered accordingly.
21. Trial Court record (TCR) be sent back with a copy of this judgment. Appeal file be consigned to record room.
Digitally signed by MURARI PRASAD SINGH MURARI Location: Court PRASAD No.7, Announced in the open Court Karkardooma SINGH Courts, Delhi Date: 2020.10.13 On 13th October, 2020 15:10:56 +0530 (M. P. Singh) ADJ - 03 (East) Delhi 13.10.2020 RCA No. 23/2019 Renuka v. Rani & Anr. Page 11 of 11